Photolibrary India Pvt Ltd Versus Commissioner of Service Tax, Mumbai

2015 (6) TMI 161 - CESTAT MUMBAI

Classification of service - appellants have website where a number of photographs are available for a viewer to see and choose from the same after browsing - whether the services rendered by the appellant would fall under the category of 'Online information and Data base access or Retrieval service' under Section 65 (75)(zh) or otherwise - held that:- on-line information means providing data or information which is retrieved or otherwise in electronic form through a computer network. It is an ad .....

nformation which is accessed need not be only photograph, it can be strategic, legal and having data wherein graphics are displayed, books and other electronic publications etc. The service as rendered by the appellant would be web-based service providing access or downloading of a digital content inasmuch as the images and photographs are nothing but a digital content stored in website. - impugned order of the first appellate authority is correct and does not require any interference - Decided .....

o see and choose from the same after browsing. The viewer is allowed to view photographs free of cost. However, he can download the data only after he enters into an agreement with the appellant and agree with the terms and conditions as stipulated by appellant. It is also one of the conditions of the appellant that the viewer has to pay for the amount as quoted by the appellant and on such payment the link is provided to the viewer/client for downloading the image. Revenue authorities are of th .....

d by the appellant would fall under taxable category. Unsatisfied with the clarification to the query by the Adjudicating Authority, the appellant preferred an appeal before the first appellate authority. The first appellate authority after following the due process of law upheld clarification issued by the Adjudicating Authority and held that the service provided by the appellant would fall under the 'Online information and Data base access or Retrieval service as per Section 65(75) of the .....

allowed to use the same for a limited purpose and limited period, for the purpose of ad insertion in magazine or purpose of enhancement of brand etc. It is his submission that when there is a specific restriction from the appellant from downloading of the image or photograph, it would mean that the said services would not get categorised under 'Online information and Data base access or Retrieval service.' He would also submit that the appellant has got copyright over the photographs whi .....

s extended by the said Duesoft Overseas for rendering services of commercial coaching or training. He would submit that the ratio of the said judgment would apply in this case also, as the client of the appellant is not in any way interacting, is only selecting an image or photograph for the purpose of downloading for his usage. He would also draw our attention to the judgment of the Tribunal in the case of GE India Technology Centre P. Ltd. 2014 (36) STR 1109 (Tri-Bang) to canvas an argument th .....

omputer; hence it will fall under the category of 'Online information and Data base access or Retrieval service'. 5. We have given anxious thoughts to the detailed submissions made by both sides and perused the records. The issue involved in this case is whether the services rendered by the appellant would fall under the category of 'Online information and Data base access or Retrieval service' under Section 65 (75)(zh) or otherwise. In order to appreciate the correct position, w .....

efinition of the services, that the on-line information means providing data or information which is retrieved or otherwise in electronic form through a computer network. It is an admitted fact in the case in hand, that the appellant's client has an access to the image or photograph, which he want to download for the purposes either to place an ad or for research can be done so only through the computer network. Further, we find that the appellant's website allows the access and retrieve .....

e copyright on the said images becomes incidental and the main activity so far as the appellant's client is concerned is making information available for retrieval. 7. It is also to be noted that the database or the information which is accessed need not be only photograph, it can be strategic, legal and having data wherein graphics are displayed, books and other electronic publications etc. The service as rendered by the appellant would be web-based service providing access or downloading o .....

ent, Hon'ble High Court in para no. 5, quoting extensively from a earlier decision stated:- "That a computer programme may be copyrightable as intellectual property, does not alter the fact that once in the form of floppy disc or other medium, the programme is tangible, movable, and available in the market place." The aforesaid observation of Hon'ble High Court can be applied to the case in hand as we find that large collection of photographs may be copyrightable but the access .....